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DOMA Ruling Seems Good For Gays, But Supreme Court May Not Buy It

The court’s language in defense of same-sex marriage was inspiring, but its reasoning could doom it before the high court. Jay Michaelson explains.

If you support equality for gays and lesbians, Thursday’s ruling by a federal court in New York striking down the Defense of Marriage Act seems very good. The problem is it’s too good.

Why? Because now that two federal courts have struck down DOMA’s key provisions in the past six months, the matter is almost certainly going to the Supreme Court, and the Second Circuit’s interpretation of equal protection in Windsor v. United States is more expansive than anything the high court has yet endorsed.

The facts of the case were strong: Edith Windsor is an 83-year-old widow. She lived with her female partner, Thea Spyer, for more than 40 years, and took care of her when she was a paraplegic suffering from multiple sclerosis. When Spyer died, Windsor was hit with a $300,000 federal tax bill—one she wouldn’t have received had Spyer been a man. She sued, and won.

Windsor is the second federal appeals court to invalidate DOMA, but the two rulings differ in a crucial way: the level of scrutiny they applied.

“Scrutiny” is legalese—but important legalese, because it describes how closely a court should review a law. Most laws are subjected to the lowest level of scrutiny—or “rational basis review.” Under this standard, if there’s any rational reason for the law, courts will generally let it stand. It is extremely hard to get a law overturned by a court applying this standard.

When it comes to laws which target specific groups, however, the standard is different. “Strict scrutiny,” the highest level, is used to consider laws involving race (which is probably why the Supreme Court will strike down affirmative action later this term). For race-based laws to survive, they must be “narrowly tailored” to further a “compelling state interest”—and very few laws pass that test.

In between is intermediate scrutiny, which requires laws to be “substantially related to an important government interest.”

In other words, the standard of review often dictates the result of a case. The same law that would pass ordinary scrutiny might fail strict scrutiny, and vice versa.

In the earlier DOMA case, Gill v. Office of Personnel Management, issued last May by a federal court in Boston, two Republican appointees signed onto a remarkably conservative opinion overturning DOMA—not, importantly, because gays are a protected class like African-Americans, but because of the law’s “disparate impact on minority interests” and “federalism concerns.”

In fact, rather than apply any previously-defined level of scrutiny, the Gill court created a new standard: a case-by-case “careful assessment of the justifications” for the law, which DOMA failed. (The court unhelpfully referred to it as “intensified scrutiny.”)

In Windsor, however, the Second Circuit went further, applying “intermediate scrutiny” to laws, like DOMA, that target gays and lesbians.

So if you’re a gay-rights supporter, Windsor initially appears to be the stronger holding. It dispensed with claims that DOMA would protect “uniformity of marriage” or the “traditional understanding of marriage.” And it held that gay people are a “politically weakened minority” that has “historically endured persecution and discrimination,” concluding that “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”

Those of us who have been fighting for LGBT equality—especially those of us working in certain red states where you can still be fired from your job simply for being gay or lesbian—might cheer when we read those words.

‘A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it,’ the court wrote. ‘For that, the pair must go next door.’

But it’s not clear that Justice Anthony Kennedy—widely seen as the swing vote in any future DOMA case—will agree. For example, in the 1996 Supreme Court case Romer v. Evans, which invalidated an anti-gay ordinance in Colorado, Kennedy seemed to go out of his way to avoid using any standard form of scrutiny, finding the ordinance to fail even rational-basis review. Moreover, the court has declined on multiple occasions to apply intermediate scrutiny outside of gender cases, certain free-speech cases, and a small number of other characteristics such as illegitimacy and alienage. Will this Supreme Court really apply intermediate scrutiny to gays? It seems unlikely.

Then again, when it comes to the high court, you really never know. Maybe Windsor will create an outer boundary, enabling the more moderate justices to adopt Gill as a compromise. Maybe the Court will prefer the familiar scrutiny level in Windsor to the novel one in Gill. Because of the unpredictability of the Supreme Court, it doesn’t hurt to have lots of alternatives in your briefcase.

It’s also worth stepping back from the legal details in cases like these. Intermediate scrutiny, narrowly tailored, suspect class … these legalisms are often critical to how the case turns out, but they don’t get to the human heart of the stories. What these cases are really about are widows like Edith Windsor who deserve equal rights. For her, of course, this case is an unqualified victory.

This case is also about marriage, of course, and what role traditional morality can play in government regulations. And in this regard, beyond its legal reasoning, Windsor’s closing words offer one of the best and most eloquent responses yet to anti-gay marriage proponents.

“Law is not concerned with holy matrimony,” the court wrote. “Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.”